The Wrong Way To Attack Dial-a-porn

January 16, 1989

The 1988 ``dial-a-porn`` law was a grandstanding over-reaction to a small problem. The problem arises from the spread of commercial telephone services that allow callers to hear sexually oriented messages for a fee. Parents have had a legitimitate complaint against services that expose curious juveniles to hard-core audio pornography. The government`s interest in protecting children demanded some kind of action.

Congress could have shielded kids while preserving the freedom of adults to indulge in this degrading but hardly dangerous commerce-for example, by requiring telephone companies to grant access to dial-a-porn only to customers who affirmatively request it. Instead, Congress decided this kind of material should be available to no one.

Even given that dubious goal, Congress easily could have tailored its approach to the demands of the 1st Amendment. Obscenity has been defined by the Supreme Court as prurient, patently offensive material that lacks serious social value, and unlike most forms of expresson it has no constitutional protection. Congress could have simply outlawed those messages that meet the definition of obscenity.

But this would allow dial-a-porn services to offer less explicit sexual fare, which lawmakers weren`t willing to tolerate. So they banned any commercial communications that are ``indecent.`` That term is conveniently vague. Any provider who guesses wrong about its meaning could be punished with six months in jail and a fine of $50,000.

Last week the Supreme Court agreed to review a lower court ruling that struck down the ban on indecency while upholding the one on obscenity. A decent respect for the Constitution will oblige the Supreme Court justices to turn back Congress` gratuitious attack on free expression.